Right to Silence

From Criminal Defense Wiki
Revision as of 14:54, 17 November 2010 by Jbraun (talk | contribs) (→‎Kenya)
Jump to navigationJump to search


In a landmark case decided by the United States Supreme Court, Miranda v. Arizona, the court ruled that when a suspect is taken into police custody, prior to any interrogation by the police, the suspect must be provided with a warning advising the suspect of his constitutional rights secured through the 1st, 5th and 6th Amendments. These are often called the "Miranda Rights" or the "Miranda Warning." If the police fail to give these warnings or the suspect doesn't knowingly and voluntarily waive these rights, any statements the suspect makes cannot be used at trial. The rights are as follows:

  1. You have the right to remain silent.
  2. Anything you say can and will be used against you in a court of law.
  3. You have the right to a lawyer.
  4. If you cannot afford a lawyer one will be appointed for you.

Miranda rights are only required to be read to a suspect, when the suspect is in the custody. A suspect is in custody if his liberty is constrained in such a way that a reasonable person would not free to leave. The rights are also only required to be read to a suspect when a suspect is interrogated by the police. Interrogation need not be direct questions. It occurs when the police make statements that could reasonably be expected to elicit an incriminating response. The Miranda decision also mandated that if a suspect is being questioned by the police, and the suspect requests a lawyer, the police must stop the questioning until the suspects lawyer arrives. If a suspect invokes his right to remain silent all questioning related to the particular crime must stop.

Miranda warnings are not required when the suspect is unaware that they are speaking with law enforcement officers and give a voluntary statement. [1]

International Sources

There is no express "right to silence" guaranteed in any international instruments like the the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social Rights (ICESR).

In the international sphere, the closest that exists to a right to silence can be found in:

  • ICCPR Article 14 (3) (g) -
    • In the determination of any criminal charge against him, everyone shall be entitled �
      • (g) not to be compelled to testify against himself or to confess guilt �
  • UN Convention on the Rights of the Child, Article 40 (2) (b) (iv) -
    • States parties shall � ensure that �
      • (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees �
        • (iv) Not to be compelled to give testimony or to confess guilt �

Examples of the right to silence


The right to silence derives from common law. According to this, neither the judge nor the jury are allowed to draw any adverse inferences about the defendant's culpability, where the latter refuses to answer police questions.

The common law position is reinforced by legislative provisions:

  • Section 464J of the Crimes Act 1958 (Vic)
  • Section 89 of the Evidence Act 1995 (NSW)

However, in the case of Petty v R (1991) 173 CLR 95 it was held that where a defendant answers some of the police questions but not others, an inference could sometimes be drawn about those refused to answer


In the Indian legal system, Article 22(1) of the Constitution of India provides that the arrested person should be informed as soon as possible about the grounds of his arrest and he shall not be denied the right to consult with and to be defended by a legal practitioner of his choice. Article 20(3) of the Constitution of India, which is based on the 5th Amendment of the U.S. Constitution made in 1791 provides that "no person accused of any offense shall be compelled to be a witness against himself."


Section 25 of the Evidence Act defines a confession as ‘words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence” If made voluntarily, the confession is deemed admissible as evidence. To protect the accused against any adverse outcome due to forced confessions, the law provides safeguards to ensure that confessions are made willfully and with full knowledge that the exercise of the right to remain silent does not amount to an admission of guilt.

By virtue of Article 49 (1)(b), the right to remain silent gives an arrestee the right to refuse to answer questions posed by police officers. Further, Article 49 (1)(d) of the Constitution states that an arrested person shall not be compelled to make any confession or admission that could be used in evidence. In the same token the use of any means aimed at compelling the arrested person to make a confession is prohibited and an involuntary confession is inadmissible. (See also, Section 26 of the Evidence Act.)

At the time of an arrest, the arrestee may not be aware of his right to remain silent. Furthermore, even if the accused is aware, he may be too distraught to exercise it at the opportune time. To safeguard against the right of the arrestee in such circumstances, the Constitution goes further to state that the right to remain silent shall be communicated to the arrestee promptly in a language that the person understands. See, Article 49 (1). Thus, admissibility of evidence obtained through a confession may be challenged on grounds that:

  • the right to remain silent was not communicated to the accused person promptly and in a language that he/she understands
  • the confessions was obtained by the use of torture or threat to use force.
  • the confession sought to be introduced as evidence was made not made to an officer of a rank, (See Section 29 of the Evidence Act.)

Kenya Code of Criminal Procedure: Recording of plea agreement by court.

  • 37F. (1) Before the court records a plea agreement, the accused person shall be placed under oath and the court shall address the accused person personally in court, and shall inform the accused person of, and determine that the accused person understands
    • (a) the right to
      • (iii) remain silent and not to testify during the proceedings


Criminal Procedure Act, 1985

  • � 198 (2) Where an accused person upon being examined elects to keep silent the court shall have the right to draw an adverse inference against him, and the court and the prosecution may comment on the failure by the accused to give evidence.

Important Cases

See Rights of the Accused